DIVERT - the early fallout - complete BS

So, you've read about the DIVERT program as written by others here in Harris County. I won't go into great detail about the program - suffice it to say that presumably DA Pat Lykos & her entourage have come up with this program to "help" first offenders who find themselves charged with DWI. I'll refer you to the blawgs written by Troy McKinney (very detailed), Murray Newman, Paul Kennedy, probably Mark Bennett - and likely others to find out their thoughts on the problems. But today, I want to tell you what I face in two cases.

Case one - client had an issue with drugs - while on bond for PCS (possession of a controlled substance), he is arrested for DWI. It is his second one. He finally "gets it" & puts himself in locked down rehab in a far away state for 6 months. SIX MONTHS! He gets out - clean & sober. He has gained weight & looks great. Well, already because it is his second - no drivers license for refusing the breath test. But, you see, driving is a privilege - not a right. Did you know that?! It is a privilege that can be taken away with little protection. But that is a different story.

I ask for pre-trial diversion on the felony - no because there is nothing exceptional about him or the situation. (I disagree - I have NEVER had a client put himself in rehab because he WANTS to be rehabilitated before he was left with a choice of rehab or jail.) But, he is offered deferred adjudication. (Well - another story) He plans on taking deferred.

On to the misdemeanor. This story has nothing to do with what may or may not happen with the misdemeanor DWI. This story is about the DIVERT program - which fails to do what the legislature has wisely done - leave sentencing to be decided on a case-by-case basis. Frankly, I cannot think of a legal argument against the policies, but it just is ridiculous. Let me illustrate.

This client, who was in rehab for 6 months, is offered 90 days. Well, I'm advised that I can negotiate - down to 75 days! That is the minimum. Let's get this straight - he did 180 days flat in rehab & is now clean & sober. His license will shortly come up for reinstatement but the rules say he gets 75 days (or set it for a trial - maybe a plea before the judge) & his license will get suspended AGAIN for 2 likely 2 years.

(Think this way - no drivy, no worky, no schooly, no nothing. What's the incentive to better oneself? What the hell?)

But, here's an even better example. Client gets arrested for a plain vanilla DWI - speeding by 20 miles over but nothing particularly bad about the tests, etc. No accident & no breath test. He will be suspended for 6 months for refusing the breath test. BUT, guess what the DIVERT program offer will be for this guy? Well, he has a prior - 25 YEARS AGO - when he was 21 so under the law & rules of DA Lykos, he is a 2nd offender - no exceptions. What offer have they made to this man? The required minimum of 60 days. SIXTY DAYS!!!! (In Harris County, 60 days means 30 days flat time.)

Seriously - this is ridiculous. It is not the assistants' fault. Their hands are tied to this offer. I may be able to go to the judge without a recommendation - if they can waive a jury. Or, I have to waste time & tax dollar because I can tell you this - I will strongly urge this client NOT to take 60 days. THIS is the crap of which these ridiculous rules are made of. These are your tax dollars being WASTED! This man should get a normal probation. They got his attention, and he is going to lose his driver's license. But 30 flat days in the jail - with rapists, robbers, murderers?!

"jerry k." - an imposter!

So, after I "get over myself" being so aggravated abt a negative posting, I think - I've never represented a "jerry". I have had 1 client whose father is named "jerry" & the father gave me a wonderful review on AVVO (and his last name didn't start with a "k".) I peruse the comments on some of my fellow CDLs (criminal defense lawyers) & there are some really good lawyers on there but guess what, they have similar negative comments "all she cared about was the money" "never returned my calls", etc. NO WAY. That's it - there is just no way that so many people for whom I have respect had provided bad representation or inattention to so many cases. But, guess what - many of them are rated by none other than "jerry k." I can assure you that if "jerry k." had had experience in hiring or interviewing with this many lawyers, he would have a tons of cases - and no time (and probably no place) to be writing about all these lawyers because he would be in the joint - likely on a lifer.

No, this asshat (to use Mark Bennett's term which I love) must be a competitor. I have known lawyers to make negative remarks about other lawyers - and the speakers were all BAD lawyers. My training in this area began with the great Wendell Odom who told me to never, ever speak badly about another lawyer. You might not say anything about the lawyer because you have nothing good to say, but do not be negative. (I have heard Wendell praise other lawyers whom the potential client was going to visit - and Wendell got hired.) It felt right then, and it feels right now.

I make it a practice to ask what other lawyers the client is talking to about the case. If asked, I will say, "s/he is a really good lawyer" or has a good reputation. If I think the lawyer is crap, I might say something like, "I do not know if I would hire that lawyer for this type of case, but you should definitely interview her/him." You know what - I find that if they interview with a crap lawyer, I look even better (more knowledgeable and able) & I didn't lose respect by being an asshat myself. (As an example, I had a DWI client call me last week who was going to see a well-known DWI lawyer. He asked me what I thought & I told him that he was going to visit a very good, very respected lawyer who would do a fine job if hired. (Sometimes the difference is the amount of the fee.)

So I get back to - who is "jerry k.", and why is he disrespecting lawyers like Todd Leffler, Doug Durham, Dane and Leslie Johnson, Dennis Slate, Larry Douglas, Dan Gerson, Jeff Purvis, Mekisha Murray, David Breston, Paul B. Kennedy, Joe Salhab, Paul Kennedy, John Floyd & others.

Want to guess why? Want to guess who?

Next edition . . .

Who is Jerry K? & why is he dis'ing me?

It started with an e-mail trying to sell me enhanced visibility on Yahoo. Like many lawyers, I have my information listed (although they can't seem to get the address updated - guess it doesn't matter as long as the phone number is correct.) I digress.

The ad gave me an opportunity to look at my "page" - so I did. WHAT THE HELL? I had been rated by 2 people - 1 apparently was just stars & must've been the max (5 stars) but the other was ONE STAR with the comment "she seemed nice, but my misdemeanor case seemed unimportant. By jerry k."

First off, I'm going to tell you that I am AV rated & I am rated 10 - superb - on AVVO. Not tooting my whistle but my clients are usually very, very happy with my work. (I can't say always - just like all lawyers, I do have the occasional client who wants to walk free even though he is guilty & he has a boatload of priors . . . And, I handle appeals & writs - another story.) Anyway, to say I was aggravated is to minimize. It actually pissed me off.

Any time I have a client who is unhappy with something that I've done or that is going on AND I KNOW ABOUT THEIR FEELINGS, I take the extra effort to make them either happy or at least understand why things happen as they do. Many times it is just a misunderstanding. Remember, these are people whose lives are being turned upside down, or at least rattled a great deal.

It made me mad because I have never treated anyone as if their case was "unimportant." I do not even think that way. Every case is important; every case has a consequence. People are affected by having even a "minor" charge against them, and could be affected in their futures. And, who is "jerry k?" I decided to investigate a bit (after raging abt this on twitter to the world.) The results of the investigations - check out my next posting.

Pat Lykos - tweeting?

I just got followed by "Pat Lykos" on Twitter, and the comments are so funny I can't get any work done cuz I'm laughing. This cannot be THE Pat Lykos, although they are using her photo. Here are some of the tweets:

How many prosecutors does it take to handle a felony court? Not as many as these bums want you to believe. (apparently referring to Murray's blog)

Going to send Hannah to make the rounds and make sure everybody is working hard. These bastards will slack off if you let them.

What's the matter, asshole, you don't like dogs? http://bit.ly/vxHTG (again referring to Murray's blog apparently)

Grabbing a smoke before going back to building the best fucking DA's Office in the USA.

These are direct quotes from the Twitter that purports to be Pat Lykos. Is it really her? Surely not. But who would be so bold? Well, it is funny for certain. I wonder what DA Lykos will think when she finds out. (I'm sure she reads Murray's blog regularly because he is always slamming her.)

Mental Health Cases in Misdemeanor Courts

There was a long commentary in the Chronicle a day or so ago written by fellow former HCCLA prez, Robb Fickman. Part of his commentary was regarding those with mental health issues being warehoused in the jail. Galveston County Judge Susan Criss posted the article on her Facebook page, and spoke in favor of the general gist (or is that jist or jest - who knows, who cares) of the article. I want to comment on some experiences I have had regading persons with mental health issues who are locked up for minor offenses.

First, I will acknowledge that businesses have the right to keep their doorways & property clear & free of beggars & others who may interfere with consumers who may feel harassed, afraid, or otherwise uncomfortable. But some times, in fact I believe more times than most people would think, the police end up arresting the accused simply because they do not have anything else they can do with them, and the person, obviously ill, is not following direction to stay off or away.

Anyway, today I had a guy who had been in jail since April for trespassing. The man has some issues, no doubt. It is obvious to anyone who talks to him for more than a few seconds. He was found to be incompetent and ordered sent to Rusk (the State's mental health - loosely used term - facility). But instead, he sat, and sat, and sat, and sat - in jail until finally today "we" or I (but really it was a cooperative effort) decided enough is enough. But is it?

I do not know why the man did not get sent to Rusk, but this happens frequently. I know THAT because I take appointed cases in one misdemeanor court on a somewhat regular basis (love that court & all the staff) & I see quite a few of these cases. It is kind of a joke when you pick up a trespass file that the first thought is - another psych case. (I don't mean that unkind - it is just that is what the mentally unstable tend to be incarcerated for - simply trespassing. For some reason - at least in the cases I have handled - the accused tends to keep going back to the same place over and over. Maybe it is a comfort thing - they feel connected to the place. This, of course, does not make it any better for the property owner.)

[Once I had a lady who swore a particular house was hers. She harassed the true owners frequently - actually entering their house & treating it like her own. The true owners got to know her family & would call them to come get her but then at some point, the house was sold. New owners move in only to come home & find that they are locked out. The client had called a locksmith & convinced him that the house was hers and all the locks needed to be changed! This case was a nightmare as the woman was fairly intelligent & had piles of papers (which made no sense) but which she used to show me and everyone that the house was hers. This was a private hire case, and her family was very supportive & eventually the case was dismissed when the accused was put into mental health treatment program. But I digress. What made it so difficult is she could see her logic and was very good at arguing her point, but she had no logic and her point was not based in fact or law, and it was impossible to get that across to her. And, so she did not think she needed, nor did she want, treatment!]

Jail is not a good place. I wouldn't want to put anyone in there - especially Harris County - unless s/he is a hardened, dangerous criminal. (There are many reasons including (1) it stinks, (2) people get beat up & killed in there by each other & apparently the popo, (3) there are apparently dangerous creatures like brown recluse spiders that visit, (4) disease is apparently pretty rampant, and the list goes on.

Because the jail is SO bad, I especially do not like the way the system works with regard to the mentally ill - they commit an offense & go to jail. They are in jail for at least a couple of days before they see a lawyer who says, "something just ain't right about this guy" and requests that he be "psyched" (aka checked out by a doctor to see if he competent to stand trial.) If he is found to be incompetent, he is sent to a mental health facility to regain competency & then comes back to face the charges. (Let me say here that most of the time when this happens - in fact, every time in my experience - the case gets dismissed.) But the P O I N T is that a sick person is sitting in jail because his sickness caused him to not understand, or to conduct himself in some unlawful (not dangerous in my cases) way.

So, my guy today has been sitting in jail since April, with a court order made about 25 days after his arrest, ordering that he be sent to Rusk. But he has not gone yet! Can you imagine that you have an untreated disease that caused you to act in a way that is unlawful - let's say it is unlawful to puke on the sidewalk. You puke because you are sick. You go to jail because you puked, but instead of treating you to help you get better, you continue to sit in jail sick.

The point is that the system just blows when it comes to the mentally ill. I can complain & make calls & like today, find a sympathetic prosecutor who dismissed the case. (After all, the guy did at least 4.5 months more in jail than he would have done if he had not been sick, and had been capable of understanding the situation. It isn't his fault the system has failed him.) But did I do him a disservice because you know what, he is still sick.

(The man had trespassed on some property - where he had been warned not to go - by going into the port-a-potty. Hhhmmm. I understand he had been told not to go to this property before, but wouldn't it have been worse if he had just "done his business" out in public? In fact, it is a crime to urinate (and probably defecate - though I have not checked it out & don't really care as far as this writing is concerned) in public. And, it is just gross.)

It is a terrible position to be in for the prosecutor on occasion when the facts are worse & they, like the fair prosecutor today, actually care, and a terrible situation for me. Do I fight to get a sick man released because he has been in too long, or do I do what is right for his mental health - and leave him sit while I do what little I can to get him sent to the hospital. (Obviously the person in the worst position is the accused who, I'll say it again, is sick.) If the person does not get help, one can usually assume by their record it is going to happen again. (Not in the case today, but in the majority of cases. The guy today actually was better than he was the last couple of times I saw him.)

As defense lawyers, we are supposed to do what the client wants (within reason - we can't help them commit crimes, etc.) But what do you do when they cannot really tell you what they want? Frankly, my thought is that it is doing the client NO good to sit in jail, and is probably harming him. Even if I think he might be helped in treatment, am I violating my obligation to act in his best interest to have him continue to sit in jail hoping to get that treatment? Where do we draw the time line? And is it fair to the sick person?

We are in dire need of a place to temporarily house those who police believe may be mentally ill, or who the lawyers think need to be assessed, and it should not be the disgusting jail.

Would you want to sit in jail waiting on the liver transplant you need? Somehow, I rather doubt it.

Helping the Boston Terrier Rescue Group - Please Donate

Don't just turn off & say you are not interested, please. We are looking for prize bag donations, and larger donations, to use to raise money for our rescue group. We are having mardi gras beads donated, and I am personally donating several new games, dog clothes, collars, etc. If you own or work at a business & can donate something - a facial, a massage, veternarian, any services, banner making (we could use this ourselves); or if you have items you bought meaning to use them but never did (like me); or if you just want to donate money or purchase something to donate, I can assure you it will be thankfully received and gratefully used to raise money for our little doggies. (Our founder & president has donated the garage to one of her houses for a kennel!)

We are strictly a volunteer group, and most of us donate financially constantly. (Most of us are also active in other animal related activities and many of us foster dogs in our homes which means food, medications, etc.)

We are 5013c & donations are tax deductible.

(This is what I do in "real" life - I advocate & help those who cannot speak for themselves.)

If you want to volunteer, we would love to have you. We have volunteers all over including Houston, Austin, Beaumont & many other places. We place dogs all over, including a couple that went to Canada. Contact me about donations, or visit our website at http://www.houstonbostonrescue.org/main.php. (We also have beautiful dogs to adopt. Check out the website.)

Many thanks (& I know, I need to put up a new legal related blog. As soon as this writ is filed . . . )